Killian Jojo Mazarura v David Beselemu

### Preamble
1
HH 150/13
HC 2676/10
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KILLIAN JOJO MAZARURA

versus

DAVID BESELEMU

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE, 19, 20, 24 March 2013 & 8 May 2013

S. Hashiti, for the Plaintiff

M .Chasakara, for the Defendant

MAFUSIRE J: The plaintiff claimed damages against the defendant in respect of his shop at Murehwa Centre which was gutted by fire at midnight on 8 August 2009. At all material times the defendant, through his company, was renting the shop in terms of a written agreement of lease. The grounds of the plaintiff’s claim were that the defendant’s employees had been negligent in that on the night in question they had neglected to switch off power to the electrical appliances in the shop, especially the chip fryer, resulting in the cooking oil in that appliance overheating to boiling levels leading to an explosion that ignited the shop.

The defendant disputed the claim. He denied that his employees had been negligent in the manner alleged, or at all. He contended that it was their company’s policy that every night after shut down the power supply to the heavy duty equipment such as the chip fryer, the stove, the chicken fryer and the smoke extractor would routinely be switched off and that this had been done on the night of the fire. The quantum of the damages claimed by the plaintiff was also disputed.

At the pre-trial conference the matter had been referred to trial on four issues, namely, [a] what was the cause of the fire? [b] does the lease agreement absolve the defendant from liability in the event of a fire? [c] what is the quantum of damages to be paid by the defendant in the event that he is liable? [d] who should bear the costs of suit?

Before going into any further details the issue relating to whether or not the defendant was absolved from liability in the event of a fire can be disposed of quickly. The issue evidently stemmed from clause seven of the lease agreement. But that clause is irrelevant. It was plainly a misconception for any party to have invoked it. The clause reads:

“SEVENTH:- In the event of a fire occurring on the premises, the Lessee shall be entitled to a total or partial remission of his rent according to the period for which he is deprived of the beneficial occupation of the premises, but the Lessee shall not have any claim upon the Lessor for damages in consequence of any such deprivation.”

Thus the lease did not absolve the defendant from liability in the event of a fire, much less one caused by him or his employees, if that be the case. On the contrary, it was the plaintiff who could claim some form of indemnity in the event of a fire, the defendant being entitled merely to a remission of the rent.

LIABILITY

In both his pleadings and the testimonies of his witnesses the plaintiff’s case on liability hinged on the alleged negligence of the defendant’s employees in allegedly failing to switch off power to the chip fryer on the night in question allegedly resulting in the oil in that appliance heating up to flammable levels or explosive levels. Paragraph 6 of the plaintiff’s declaration read as follows:

“6. According to the findings by ZESA Holdings [Private] Limited the fire could have been caused by an oversight to switch off the chip fryer on time or overnight resulting on the oil heating up to flammable/explosive level”[sic]

Throughout the trial the plaintiff’s case was premised on the theory that the power supply to the chip fryer must have been left in the “on” position such that when power had been restored in the early hours of the morning, long after everyone had retired to bed, the chip fryer must have overheated the oil which in turn must have exploded resulting in the fire. It was common cause that due to the system of load shedding imposed by the electricity supply authorities the power supply to the shop and the others adjacent to it had been interrupted at around 6:00 hours on 8 August 2009 and had only been restored at around 21:00hours when the defendant’s employees were closing the shop.

In the circumstances I have to assess the evidence led and make a finding on whether or not the plaintiff proved its theory on the cause of the fire.

Much of the evidence was common cause. The defendant operated an eating house or fast foods take away business at the shop.  The chip fryer belonged to the plaintiff. It had been on hire to the defendant. The defendant had ten employees. His wife, Rophina Beselemu, was one of the employees at the shop and the one overally in charge of operations. Power supply to the shop and two of its neighbours was through a 60 amp cable. That was a cable from the power supply and distribution company, the Zimbabwe Electricity Transmission and Distribution Company [ZEDTC]. The actual power supply to the defendant’s shop was through a 100 amp cable. That was not a cable from ZEDTC but one installed by the consumer. There was no evidence to establish who between the plaintiff and the defendant had installed that cable. That the consumer’s cable was of a bigger calibration than the feeder cable from the ZEDTC was an anomaly which the ZEDTC had discovered after the fire. It had ordered that the anomaly be rectified. However, that anomaly had had no bearing on the cause or causes of the fire.

The fire had broken out at around 24:00 hours on 8August 2009. The crowd that had gathered had tried to put it out by water. But such efforts had failed. Efforts to get through to the fire brigade had also failed. The fire damage had been more intense in the kitchen portion of the shop. That had been where the chip fryer had been housed. The police and the ZEDTC had been informed. Their officers had been on the scene early the next day. They had conducted a preliminary investigation in the presence of a number of interested parties who had included the plaintiff, the defendant, several of their employees and other witnesses. Statements had been recorded from some of the witnesses, including Mrs Beselemu and the security guard who had been on duty on the night of the fire. Among some of the observations made during that preliminary investigation was the fact that the mains circuit breakers [MCBs] to the cooker and the chip fryer had been switched off. It had also been observed that the ZETDC’s 60 amp feeder cable had been switched off. Also some two 20 amp MCB plugs had been switched off. ZEDTC had compiled a preliminary report. It was produced as exhibit 2.

About a month later, i.e. on 6 September 2009, ZETDC had assembled a three man team to undertake a more comprehensive assessment into the possible causes of the fire and to make recommendations to guard against any possible recurrences. The ZETDC team had been joined by a police detail from the local police station and several employees of the defendant. The team had compiled another report. It was produced as exhibit 1.

The shop had been extensively damaged. The plaintiff had already carried out repairs by the time of the trial. However, the value of such repairs was in dispute. The defendant had also lost a large quantity of groceries. Again the value of the groceries was in dispute. However, the defendant’s loss was not an issue for the trial.

PLAINTIFF’S EVIDENCE

The plaintiff opened its account through the ZEDTC employees. They were called as expert witnesses. First was Mr Clifford Dongo, then a senior customer services officer. Next was Mr Salem Chenzara, then a customer services officer. Last was Mr Raphael Rupere, then a senior engineer. Mr Rupere had chaired the investigation committee. He was the one who had signed the second assessment report marked exhibit 1.

There was much convergence on the evidence of the ZEDTC employees. The main purpose of their investigation had been to establish whether or not the fire had been caused by an electrical fault. In the initial notification to ZEDTC it had been intimated that the fire had been due to an electrical fault. The defendant had in fact evinced an intention to seek compensation for the goods that he had lost. Attached to exhibit 1, the ZEDTC second report, had been two letters by the defendant to Mr Rupere, both dated 23 September 2009. The letters had listed the groceries and the equipment that the defendant had allegedly lost in the fire. Some values had been placed on the destroyed or damaged goods. The defendant had then waited for Mr Rupere to “urgently act on this matter”.

In their evidence the ZEDTC employees stated that they had observed during their investigation that none of the electric cables had welded together or shown any signs of melting as would have been the case had the fire been due to an electrical fault. Although the cables had been burnt they stated that the fire had demonstrably emanated from an external source, not from any possible short circuiting of the cables. They had ruled out any possibility of the fire having been caused by an electrical fault.

The ZEDTC employees also testified that they had observed that the intensity of the fire damage had been concentrated in the kitchen portion of the shop, particularly at the area where the chip fryer had been installed. They had also observed that there had been several 20 litre containers for cooking oil in the kitchen and that these had been lying some 3 to 4 metres away from the chip fryer. These containers had largely been destroyed by the fire. Mr Clifford Dongo in particular, claimed that on the day of their second inspection, i.e. about a month after the fire, he had observed the burnt out chip fryer. As shown later in this judgment this was contrary to the defendant’s evidence and that of his wife that the chip fryer had not been damaged and that about a week after the fire they had simply wiped off the smoke and had taken it to their other shop elsewhere where they had continued to use it without carrying out any repairs to it.

It was the conclusion of the ZEDTC employees that the fire had been caused by an explosion of the oil in the chip fryer which must have ignited the shop. They opined that those MCBs and plugs that they had observed in the “off” position must have been switched off by the defendant’s employees or one of the members of the crowd as people had battled to put out the fire. They rejected the defendant’s assertion that the switches to the appliances had deliberately been placed in the “off” position by his employees as routine practice in line with their company policy.

The ZEDTC employees all conceded that they were not experts on fires other than those caused by electrical faults.

The plaintiff’s fourth witness was Ms Tsamwisai Richards. She had been the plaintiff’s manager at the time. Her evidence was essentially on the fact that the defendant had leased the shop in question and on the quantum of damages suffered by the plaintiff as a result of the fire. I shall asses her evidence as I deal with the issue of quantum later on.

On the aspect of liability the material evidence from Ms Richards was that the defendant had breached the lease agreement by keeping large quantities of cooking oil in the kitchen. However, there was no attempt to define what constituted a large quantity of cooking oil in relation to what the defendant legitimately needed to store in the kitchen for the chip fryer.

The plaintiff’s fifth and last witness was Mr Willard Mangumba. He had been a co-tenant who had been renting one of the shops next to that rented by the defendant. Someone had awakened him after the fire had broken out. When he had rushed to the scene he had observed that the defendant’s shop had been on fire. The fire had been more intense on the chip fryer and the industrial cooker that were in the kitchen portion of the shop. He had broken into the defendant’s shop to try and help put out the fire with the little water that had been available and also to salvage some of the defendant’s groceries. At one point it had seemed as though the fire had died down only to hear people shouting at him a few minutes later urging him to get out of the shop as there had been an even bigger fire coming from the ceiling. He had rushed out of defendant’s shop and had gone into his own shop to pull out the groceries from there in case the fire would spread.

The defendant declined to cross-examine Mr Mangumba. The plaintiff closed its case.

DEFENDANT’S EVIDENCE

The defendant and his wife aforesaid gave evidence. The material aspects of their testimonies was that at all material times they had been renting the plaintiff’s shop and chip fryer through a company or entity called A1 Shops; that it was company policy that every night after shut down they would ensure that the electrical equipment such as the chip fryer, the cooker and the chicken fryer would be switched off overnight but that they did not need to do this in respect of light duty equipment such as refrigerators. They testified that on the night of the fire this routine check had been done. Power to the shopping complex had been switched off at around 6:00 hours and had only been restored at around 21:00 hours when the defendant’s employees were then counting the day’s takings. The fire had occurred in the early hours of the next day.

The defendant had been away when the fire had broken out. However, he had arrived at the scene very early the next morning. He had witnessed the first assessment done by the ZEDTC. The switches to the heavy duty equipment, including the chip fryer, had been switched off. With regards the chip fryer in particular, the defendant stressed that it had not been burnt, let alone destroyed. He testified that after about a week he had simply cleaned and taken it to his other shop where he had started using it without any repairs to it. He disputed the plaintiff’s theory that the fire could have been caused by an explosion of the oil in the chip fryer or the theory that his employees could have forgotten to switch off the power supply to that equipment. He maintained that cooking oil containers would be stored in the storeroom and not the kitchen. However, he conceded that there could have been one or two containers in the kitchen on the night of the fire.

Mrs Beselemu’s evidence was much to the same effect as that of the defendant. She testified that everyone of the employees had the duty to switch off power to the gadgets that they would be using but that she had the overall responsibility to check that this had in fact been done. She stated that although on the day preceding the night of the fire there had been no power due to the load shedding, they had continued with their operations in the cooking shed behind the shop using fire wood. Power had been restored to the complex only at around 20:00 hours when they were already closing down. After counting the day’s takings she had checked and had ensured that the electrical gadgets, including the chip fryer, had been switched off. She had been alerted of the fire by one of the employees, Maud. She had rushed to the scene and had observed the whole shop on fire. She had rushed to the police station to make a report. When she had come back the fire had spread. There had been a number of people around. She had not witnessed the alleged efforts to put out the fire by water.

Mrs Beselemu also maintained that they had suspected that the fire had been caused by an electrical fault because the light bulbs in the shops would from time to time go on and off on their own.

In cross-examination Mrs Beselemu was quizzed on her statement to the police, particularly the portion that read:-

“Some groceries were then burnt in the shop after failing to save them together with the refrigerators, chips fryer, one industrial stove; chicken fryer and a three legged electric pot and gas stove and also meat slicer which was in the butchery was also destroyed the computer was also destroyed in the shop”.

Mrs Beselemu was also quizzed about another portion of her statement wherein she had recorded that she had personally gone to the shop and had found “that the kitchen was in flames”.

Why the above portions of Mrs Beselemu’s statements attracted much attention in cross-examination was evidently because in her evidence-in-chief Mrs Beselemu expressly denied that when she had rushed to the shop she had observed that it was the kitchen portion of the shop which had been on fire. She had also denied that the chip fryer, among the other gadgets, had been destroyed or damaged. Regarding the apparent inconsistencies between her statement to the police the next day after the fire and her evidence in court about three years later, Mrs Beselemu said that it was the police that had written down the statement for her, that they must have got it wrong in some respects and that the statement had not been read back to her before she had been asked to signed it. With regards to the equipment allegedly destroyed in the fire, she stated that the police had asked her to mention the items that had been in the shop and that she had mentioned the groceries and the electrical gadgets in question but that she had not told the police that those gadgets had also been destroyed by the fire.

After Mrs Beselemu the defendant closed his case.

FINDINGS ON LIABILTY

As CHATIKOBO J put it in Matibiri v Kumire 2000 [1] ZLR 492 when dismissing the plaintiff’s case therein which had wrongly been based on the concept of a universal partnership: “It may well be that if the plaintiff had identified a suitable cause of action, she could have obtained some relief. She nailed her colours to the mast of the concept of a universal partnership, the existence of which has not been established” [my own emphasis].Likewise in this case, it may well be that the fire that extensively damaged the plaintiff’s shop at Murehwa on the night of 8 August 2009 may have been caused by the negligence of the defendant or that of one or other or all of his employees. However, the plaintiff having nailed his colours to the mast of the theory that it was the negligence of the defendant’s employees by leaving the chip fryer in the “on” position resulting in the oil in that gadget over-boiling to explosion levels resulting in the fire I must decide whether this theory was proved.

In deciding whether the plaintiff proved its theory I must assess the evidence of all the witnesses in their totality and weigh the probabilities of the case as one single process and not disjointedly or piece meal. Much was made of the apparent inconsistencies between Mrs Belemu’s statement to the police soon after the fire and her evidence in court about three years later. However, the credibility of witnesses has to be weighed in the process of an overall assessment of all the evidence and of the probabilities of the case. The assessment of the credibility of individual witnesses is not a process done in isolation or as a separate enquiry.

The approach in the assessment of the credibility of witnesses and of the probabilities of a case as a whole was summarised by EKSTEEN AJP in National Employers’ General Insurance v Jagers 1984 [4] SA 437 when he stated:

“It does not seem to me to be desirable for a Court first to consider the question of the credibility of the witnesses as the trial court did in the present case, and when, having concluded that enquiry, to consider the probabilities of the case, as though the two aspects constitute separate fields of enquiry.”

In the case of S v Kelly 1980 [3] 301 the South African Appellate Division criticised an approach where the demeanour only of one witness was compared with that of another in seeking the truth. It was appreciated that the assessment of the demeanour of witnesses could be a tricky process. Some witnesses can mislead with confidence. Others may be shy and awkward yet be telling the truth.

I am satisfied that the apparent inconsistencies between Mrs Beselemu’s statement to the police soon after the fire and her testimony in court three years later were so inconsequential as not to have any bearing on the overall assessment of the probabilities. In this case the onus was on the plaintiff to prove a breach of the duty of care by the defendant and to prove that it was that breach which resulted in the loss that the plaintiff incurred. It is the breach of the duty of care that constitutes negligence. The test is whether there was a reasonable foresee ability of harm to the plaintiff and whether the defendant, as the diligens paterfamilias, would have taken steps to guard against that harm.

It was laid down in the case of Langley Fox Building Partnership [Pty] Ltd v De Valence1991 [1] SA 1that in determining whether or not there has been a breach of the duty of care there should be a 3 rung enquiry. This is [a] would a reasonable man have foreseen the risk of danger; [b] would a reasonable man have taken steps to guard against the danger; [c] were such steps duly taken [or not taken].In the case of Peri-Urban Areas Health Board v Munarin1965 [3] 367 [AD], HOLMES JA said

“Negligence is the breach of a duty of care. In general, the law allows me to mind my own business. Thus if I happen to see someone else’s child about to drown in a pool, ordinarily I do not owe a legal duty to anyone to try to save it. But sometimes the law requires me to be my brother’s keeper. This happens, for example, when the circumstances are such that I owe him a duty of care; and I am negligent if I breach it. I owe him such a duty if a diligens paterfamilias, that notional epitome of reasonable prudence, in the position in which I am in, would –

foresee the possibility of harm occurring to him; and

take steps to guard against its occurrence.

Foreseeability of harm to a person, whether he be a specific individual or one of a category, is usually not a difficult question, but when ought I to guard against it? It depends upon the circumstances in each particular case, and it is neither necessary nor desirable to attempt a formulation which would cover all cases.”

GOLDSTONE AJA in the Langley Fox Building Partnershipcase above quoted with approval the following remarks by INNES CJ in Cape Town Municipality v Payne1923 AD 207:

“The question whether, in any given situation, a reasonable man would have foreseen the likelihood of harm and governed his conduct accordingly, is one to be decided in each case upon a consideration of all the circumstances. Once it is clear that the danger would have been foreseen and guarded against by the diligens paterfamilias, the duty to take care is established, and it only remains to ascertain whether it has been discharged.”

In the case before me, the plaintiff’s cause of action was largely speculative. The real cause of the fire was never established. From the evidence I reject the theory by the ZEDTC employees that since the fire was not due to an electrical fault it must have been due to some explosion of the oil in the chip fryer. The probabilities militate against giving credence to that theory. To begin with, if the chip fryer had been the culprit and the oil in it the cause of the fire, the probabilities are that the chip fryer would have been destroyed or extensively damaged. However, the defendant and his wife were emphatic that only about a week after the fire all they needed do to the chip fryer was simply to dust the smoke off, which they did, and re-use it in one of their shops elsewhere. This aspect of the defendant’s evidence was not challenged. I reject Mr Dongo’s evidence that he observed the chip fryer on the day of the second assessment a month later. Among other things, this aspect was neither captured in the preliminary report by Mr Chenzara on the morning of the fire nor in the more comprehensive report compiled by Mr Rupere after the more comprehensive assessment. Furthermore, in his letter of 23 September 2009 to the ZEDTC referred to above, the defendant made a list of the goods and equipment that had been destroyed or damaged in the fire. None of the heavy duty appliances such as the chip fryer, the stove and the chicken fryer was on the list. Therefore, Mr Dongo’s claim is not consonant with the probabilities.

Furthermore, the fact that the MCB’s and the plugs to the heavy duty electrical equipment such as the chip fryer had been in the “off’” position at the time of the initial inspection by the ZEDTC employees is consistent with the defendant’s assertion and that of his wife that those switches had indeed been switched off in line with their company policy. If the MCB to the main 60 amp feeder cable had been switched off during efforts to put out the fire on the night of the fire as the ZEDTC employees maintained at the trial, it does not make sense that it would then have been felt necessary to have gone further to switch off the MCBs and the plugs to the individual gadgets. I have accepted the version that says that the defendant’s employees had consciously switched off power to the heavy duty gadgets as part of their routine safety checks every night after shut down.

The plaintiff evidently appreciated that the defendant’s business necessarily required the use of a chip fryer. To facilitate that the plaintiff had leased the chip fryer to him. That gadget necessarily used cooking oil even though the quantities that would be required at any given time were not established. But even in her evidence Ms Richards, one of the plaintiff’s witnesses, appreciated that a quantity of cooking oil had to be kept in the kitchen for the chip fryer. Her claim that the defendant was not supposed to keep large quantities of the cooking oil in the kitchen did not help matters. What constituted large quantities of cooking oil was left hanging despite the court seeking clarity on the point. Thus, the claim that the defendant might have kept several 20 litre containers of cooking oil in the kitchen on the night of the fire does not take the plaintiff’s case further.

The cause of the fire was never properly investigated. ZEDTC’s mandate was simply to establish whether or not the fire had been due to an electrical fault. Having exonerated their cables not much further effort seemed to have been made in investigating further the real cause of the fire. The fire brigade was not called in. No other fire expert was called. The ZEDTC were candid enough to admit that their expertise did not extend beyond electrically induced fires. The intensity of the fire damage in the kitchen portion of the shop, particularly the place where the chip fryer had been installed, could be explained by other factors such as the presence of too many combustible substances as the defendant maintained. But if none of the accessories to the chip fryer had been damaged and had remained intact after a fire of such intensity as the evidence established, then it would not be credible to lay the blame on the chip fryer.

The use of the chip fryer and other heavy duty equipment necessarily increased the risk of harm. This was easily foreseeable. Consequently, the defendant, as the diligens paterfamiliass in charge of the plaintiff’s shop, was obliged to take reasonable steps to guard against that harm. I am satisfied that he did. Every night after shut down the power supply to the heavy duty equipment would routinely be switched off. However, that in spite of those precautions the fire broke out is not something to be blamed on the defendant. The onus having been on the plaintiff to establish fault on the part the defendant I find that such onus was not discharged.

However, it is common cause that of the three shops at the complex the fire had broken out only from the defendant’s shop. The fire had been more intense in the kitchen portion of the defendant’s shop. Defendant’s business required the use of heavy duty equipment which generated intense heat. That created an appreciable risk of harm. However, it was not established what businesses were being conducted in the other neighbouring shops. Therefore there was nothing with which to compare the risk by defendant’s business in order to make a value judgment.

The ZEDTC employees had expressed misgivings about the electrical wiring in the defendant’s shop. However, no evidence was led to indicate whose wiring it had been between the defendant as the tenant and the plaintiff as the landlord. Furthermore, there was no evidence regarding the wiring in the neighbouring shops which were fed from the same mains. Therefore there was nothing with which to compare the risk associated with the wrong electrical wiring in the defendant’s shop. At any rate, the ZEDTC had discounted the wrong wiring as having had any bearing on the cause of the fire.

In all the circumstances, whilst there might have existed a strong suspicion that somehow the cause of the fire in question must have been due to the fault of the defendant or that of his employees, there was simply no evidence of that fault that was proved. Therefore, in my view, the appropriate verdict is absolution from the instance.

QUANTUM

In the summons and declaration the plaintiff claimed the sum of $18 850-00 as his damages. The plaintiff’s main witness on quantum was Ms Richards. During her evidence she highlighted and placed great reliance on a handwritten document compiled by her and which appears to have been drawn up contemporaneously. That document was part of the bundle that was produced by the plaintiff as a supplementary discovery schedule almost at the close of the plaintiff’s case. The amount on Ms Richards’ document was US$36 748-40. During trial part of the plaintiff’s evidence tended to show that the plaintiff’s loss was slightly in excess of US$52 000. At the close of his case the plaintiff applied to amend his declaration so that the amount of his damages would reflect US$52 000. It was during that application for amendment that it transpired that the copies of the summons that the parties had in their possession were reflecting yet a different set of figures than those on the original summons and declaration in the court record. The figure on the parties’ summons and declaration was US$49 894-05. Upon request plaintiff’s counsel handed in an extra copy of the summons and declaration. It was quite clear from the plaintiff’s copy of the summons and declaration that were handed in that whatever figure that had originally been typed on those documents had been crudely erased and crudely substituted with a handwritten figure of US$49 894-05. Mr Hashiti could not explain why and when that crude alteration had been made and why the court record contained documents with different figures.

Mr Chasakara said in principle he would not oppose the plaintiff’s application for an amendment. However, he objected to the figure of US$52 000-00 which the plaintiff wanted inserted and suggested that the figure logically had to be US$36 748-40 which Ms Richards seemed certain about as being the ultimate cost of the repairs to the shop. Mr Hashiti persisted with the figure of US$52 000-00 on the basis that in spite of all the other figures, including the figure on Ms Richards’ document, the totality of the plaintiff’s evidence on quantum seemed to suggest that the plaintiff’s actual loss exceeded US$52 000-00 but that the plaintiff would be content to limit his claim to US$52 000 only.

On several occasions as the trial progressed and at the court’s prompting the parties promised to come together and make some kind of audit on the figures which were reflected on the various documents with a view to arriving at an agreement regarding quantum. Even on the day of the plaintiff’s application to amend, which was the same day that the plaintiff closed its case, the parties undertook to come together and collate the documents and reconcile the figures. They would advise the court of their findings, or better still, of their agreement on quantum. On that understanding I allowed the plaintiff’s application to amend. However, the actual amount was left open. Unfortunately, the parties never came back to advise the position on whether or not they had met to reconcile the figures and what the position on quantum had been.

The situation in this matter seemed to have been compounded by the fact that the plaintiff seemed not to have made proper preparations for the trial, particularly on the aspect of quantum. At one stage he almost closed his case without having led any evidence on quantum. It was only after the court had sought clarification on certain aspects that it was advised that Ms Richards would be called to lead evidence. In the plaintiff’s summary of evidence there was no synopsis at all of the evidence on quantum. Be that as it may, when Ms Richards came the court was advised that the documents necessary to prove quantum, such as invoices and quotations, had been in various places and that efforts were being made to bring them to court. In the end Ms Richards was stood down at one stage to allow the plaintiff to go to the next witness.

When plaintiff resumed leading the evidence of Ms Richards much attention was focused on the huge bundle of documents that comprised several quotations, invoices and receipts of building materials such as bricks, roofing sheets, cement and services such as transport. The defendant challenged most of the documents. One major challenge by the defendant was on the fact that a number of the invoices emanated from the plaintiff’s own company and that the figures seemed exorbitant. Ms Richards explained that the plaintiff operated a hardware shop and that some of the building materials needed for the repairs to the shop had indeed been sourced from that shop. She also explained that the plaintiff’s company had provided some of the transport services and that quotations sourced from elsewhere had proved to be more expensive.

Mr Hashiti explained that the reason why the plaintiff’s figures kept changing was because the summons had been issued before the burnt shop had been repaired. The actual amount had only been ascertained after the repairs. However, that explanation does not satisfactorily explain the numerous variations, especially as it was claimed that the shop had been repaired in terms of the quotations sourced earlier. On record, the plaintiff’s claim was for $18 850-00. As he applied for an amendment seeking the deletion of the figure of US$49 894-05 which was on his copy of the summons and the substitution thereof with US$52 000-00 which he claimed the evidence had proved, the court was at cross purposes with him because the figure of US$49 894-05 did not appear anywhere in the record. As pointed out above it was only after I had had sight of the plaintiff’s own copy of the summons that it transpired that someone had crudely amended it as aforesaid.

I am not satisfied that the plaintiff proved its quantum. As pointed out earlier, Ms Richards’ document had an amount of US$36 748-40. However, that document was said to be a summary of the costs of repairs that had been collated at some stage. The entries on that document did not exactly tally with the amounts on the invoices that made up the bundle. There was no attempt to properly collate the various documents and to reconcile the various amounts reflected thereon in order to give a more concise figure of the alleged repair costs. Even the amount of US$52 000-00 which the plaintiff pressed for was a thumb suck. His own claim was that the amount on the documents on quantum was in excess of US$52 000-00 but that he would limit his claim to US$52 000 only. However, I am not satisfied that the plaintiff proved any of the amounts that featured in his claim.

In the final result, the defendant is absolved from the instance in respect of both liability and the quantum of damages. The plaintiff shall pay the costs of suit.

Honey & Blanckenberg, plaintiff’s legal practitioners

Gunje & Chasakara, defendant’s legal practitioners